BILL ANALYSIS
AB 2632
Page 1
Date of Hearing: April 13, 2010
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2632 (Davis) - As Amended: April 5, 2010
SUMMARY : Designates a specific gang injunction subsection
under the contempt of court statute for statistical purposes.
EXISTING LAW :
1)Provides that the following persons are in contempt of court
and guilty of a misdemeanor:
a) Disorderly, contemptuous, or insolent behavior committed
during the sitting of any court of justice, in the
immediate view and presence of the court, and directly
tending to interrupt its proceedings or to impair the
respect due to its authority.
b) Disorderly, contemptuous, or insolent behavior committed
in the presence of any referee, while actually engaged in
any trial or hearing, pursuant to the order of any court,
or in the presence of any jury while actually sitting for
the trial of a cause, or upon any inquest or other
proceedings authorized by law.
c) Any breach of the peace, noise, or other disturbance
directly tending to interrupt the proceedings of any court.
d) Willful disobedience of the terms as written of any
process or court order or out-of-state court order,
lawfully issued by any court, including orders pending
trial.
e) Resistance willfully offered by any person to the lawful
order or process of any court.
f) The contumacious and unlawful refusal of any person to
be sworn as a witness or, when so sworn, the like refusal
to answer any material question.
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g) The publication of a false or grossly inaccurate report
of the proceedings of any court.
h) Presenting to any court having power to pass sentence
upon any prisoner under conviction, or to any member of the
court, any affidavit or testimony or representation of any
kind, verbal or written, in aggravation or mitigation of
the punishment to be imposed upon the prisoner, except as
provided, as specified. [Penal Code Section 166(a).]
2)Allows every building or place used by members of a criminal
street gang for the purpose of the commission of a felony for
the benefit of, at the direction of, or in association with
any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct, or any offense
involving dangerous or deadly weapons, burglary, or rape, and
every building or place wherein or upon which that criminal
conduct by gang members takes place, is a nuisance to be
enjoined, abated, and prevented, and for which damages may be
recovered, whether it is a public or private nuisance. [Penal
Code Section 186.22a(a).]
3)Provides any person who is convicted of a public offense
punishable as a felony or a misdemeanor, which is committed
for the benefit of, at the direction of or in association
with, any criminal street gang with the specific intent to
promote, further, or assist in any criminal conduct by gang
members, shall be punished by imprisonment in the county jail
not to exceed one year, or by imprisonment in the state prison
for one, two, or three years, provided that any person
sentenced to imprisonment in the county jail shall be
imprisoned for a period not to exceed one year, but not less
than 180 days, and shall not be eligible for release upon
completion of sentence, parole, or any other basis, until he
or she has served 180 days. If the court grants probation or
suspends the execution of sentence imposed upon the defendant,
it shall require as a condition thereof that the defendant
serve 180 days in a county jail. [Penal Code Section
186.22(d).]
FISCAL EFFECT : Unknown
COMMENTS :
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1)Author's Statement : According to the author, "Many
communities would like to measure the effectiveness of gang
injunctions but are often presented with a lack of accurate,
reportable information. This bill would allow communities to
review specific information related to gang injunctions. This
bill would also provide law enforcement and the courts with
more accurate information to assist with enforcement efforts
and sentencing."
2)Background : According to information provided by the author,
"Penal Code section 166(a)(4) prohibits violation of any court
order. This includes domestic related court order, domestic
violence court order, business-related court orders arising
from civil law suits, civil 'keep-away' orders arising from
neighbor disputes, violations of Family Courts' orders to
provide support, and violations of any number of court orders
and injunctions. It also includes violation of gang
injunctions.
"When there is a conviction for PC 166(a)(4), the court clerk
enters the fact of the conviction and the conviction then
becomes part of the defendant's rap sheet. What doesn't get
reported is the type of court order that was violated.
"When reviewing a defendant's rap sheet, a filing deputy does
not know if the conviction relates to a Family Court order or
because the defendant's behavior violated the terms of a
lawfully issued gang injunction.
"The creation of a separate code section for violating a gang
injunction will also allow the community to help track the
effectiveness of gang injunctions in their community, and will
allow law enforcement to accurately answer questions about the
number of gang injunction violation arrests and prosecutions.
"Last session, several legislators inquired about the number of
gang injunction violations filed and prosecuted both in Los
Angeles County and in the State of California. Due to the
current state of the law, our office was unable to provide
that information to the legislators."
3)Criminal Contempt, Participation in a Criminal Street Gang and
Bootstrapping : In Lopez v. Superior Court (2008) 160 Cal.
App. 4th 824, Anthony Lopez was arrested for being in the
company of Santa Nita criminal street gang members after 10:00
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p.m. while possessing open containers of alcohol, actions
which violated three terms of a court injunction issued to
"abate the public nuisance" of Santa Nita gang conduct. An
indictment issued, charging Lopez with three counts of
contempt [see Penal Code Section 166(a)(4)] of that
injunction, one for each of the three violated terms. In
addition, each count of contempt carried the allegation that
it was committed for "the benefit of, at the direction of, and
in association with . . . a criminal street gang," pursuant to
Penal Code Section 186.22(d). Lopez demurred to the
indictment because that subdivision provides that any person
convicted of the attached crime shall then be punished with
specified minimum terms of imprisonment greater than those
terms otherwise permitted for the crime. In this case, that
subdivision elevated the crime from a misdemeanor to an
alternate felony/misdemeanor, carrying the potential of an
increased felony sentence. Because the factual crux of Penal
Code Section 186.2(d) (gang-related misconduct) was already
the basis for the initial issuance of the injunction, Lopez
argued it should not also be the basis to elevate the current
crime. This dual use of the same fact, Lopez argued, is
"impermissible bootstrapping." [See People v. Arroyas (2002)
96 Cal.App.4th 1439.]
The court agreed. In People v. Briceno (2004) 34 Cal.4th 451,
the California Supreme Court addressed and resolved the issue
of whether any felony to which an enhancement under Penal Code
Section 186.22(b) is attached may qualify as a serious felony
for future enhancement under Penal Code Section 667(a)(1).
Serious felonies are listed in Penal Code Section 1192.7(c),
which includes in Item 28 (added by the passage of Proposition
21) "any felony offense, which would also constitute a felony
violation of Section 186.22." Briceno argued that could only
mean the single felony of street terrorism under Penal Code
Section 186.22(a). The court rejected this narrow
interpretation, concluding that any felony to which an
enhancement under Penal Code Section 186.22(b) was attached
would thereafter comprise a "serious felony" for later
enhancing purposes. (People v. Briceno, supra, 34 Cal.4th at
pp. 458-459.)
In so holding, the Briceno court rejected the characterization
that this interpretation resulted in double punishment or
bootstrapping because "any felony that is gang related is not
treated as a serious felony in the current proceeding . . . .
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" [Id. at 465 (italics added).]
The pertinent point voiced in the Briceno opinion was that the
"same gang-related conduct" cannot be used twice in the same
sentencing scheme without violating the concept of double
punishment for the same act. (People v. Briceno, supra, 34
Cal.4th at p. 465.)
In Lopez's case, the same "gang-related conduct" is being used
first as the violation of the injunction and then used again
to elevate that offense from a straight misdemeanor to the
alternate felony/misdemeanor under Penal Code Section
186.22(d). The actions comprising his violations of the court
order are not criminal in themselves: they only become
criminal because they are gang related. (Lopez v. Superior
Court, supra, 160 Cal. App. 4th at p. 832.) The Lopez court
stated:
"Specifically, Lopez allegedly violated the court order by being
'outside' between the hours of 10:00 p.m. and sunrise, being
found in the company of another gang member while a gang
member, and drinking alcoholic beverages. The district
attorney emphasizes that he is not charged with gang-related
conduct; he is charged with willful disobedience of a lawfully
issued court order. (See Raskin v. Superior Court (1934) 138
Cal.App. 668, 670 [contempt is essentially a crime against the
authority of a court].) Thus, the actual offense with which
he is charged does not, on its face, relate to the same facts
used to elevate the crime under section 186.22, subdivision
(d), i.e., gang-related conduct.
"Irrespective of this characterization, the injunction was
issued to abate gang-related conduct. It focuses only on
otherwise innocuous acts which are made criminal solely
because they are engaged in by gang members for the benefit of
that gang. And it is those otherwise innocuous acts which
comprise the disobedience of the injunction and the proof of a
gang connection for the enhancing allegation under section
186.22, subdivision (d). Thus, it is 'the same gang-related
conduct [used] again to obtain an additional' form of
punishment (People v. Briceno, supra, 34 Cal.4th at p. 465),
i.e., the elevated designation as a felony." (Ibid.)
Thus, the court held that the prosecution cannot legally
criminalize behavior due to the sole fact that it is gang
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related and then increase punishment for that behavior simply
by again alleging the same gang-related fact.
The Lopez court demonstrates two important issues related to
this bill. The first issue is that this bill may not be used
to increase the punishment of contempt of court for willful
disobedience of the terms of a gang injunction. The
punishment will remain a misdemeanor. The second issues is
that "willful violation of the terms as written of any process
or court order . . . lawfully issued by any court" is a
violation of Penal Code Section 166(a)(4) (italics added);
thus, the conduct covered by this bill is already existing
law. According to the author however, this bill is necessary
"to measure the effectiveness of gang injunctions."
4)Argument in Support : According to the Los Angeles County
District Attorney's Office (the sponsor of this bill), "Penal
Code Section 166(a)(4) prohibits violation of any court order.
This includes domestic-related court orders, domestic violent
court orders, business-related court orders arising from civil
law suites, civil 'keep-away' orders arising from neighbor
disputes, violations of Family Courts' orders to provide
support, and violations of any number of other court orders
and injunctions. It also includes violations of gang
injunctions.
"Where there is a conviction of PC Section 166(a)(4), the court
clerk enters the fact of the conviction and the conviction
then becomes part of the defendant's rap sheet. What doesn't
get reported is the type of court order that was violated.
"The effectiveness of gang injunctions has been a matter of
public concern for the past several years. During this time,
law enforcement organizations, including our office, have
repeatedly been asked a seemingly simple question, 'How many
individuals have been arrested or convicted of violating a
lawfully issued gang injunction?' Unfortunately, because
there is no way to determine the type of court order that was
violated when looking at an individual's criminal history
information (rap sheet), we have not been able to answer that
seemingly simple question. This has proven to be frustrating
not only to us, but to members of the Legislature and members
of our communities.
"The creation of a separate code section for violating a gang
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injunction will assist member of the community in tracking the
effectiveness of gang injunctions in their communities, and
will allow law enforcement agencies to accurately answer
questions about the number of gang injunction violation
arrests and prosecutions.
"Creating a separate code section for violating a gang
injunction will also allow law enforcement officers and
prosecutors to see at a glance that a defendant was convicted
of violating a gang injunction in the past.
"When reviewing a defendant's rap sheet, a filing deputy does
not know if a PC Section 166(a)(4) conviction relates to a
Family Court order or because of the defendant's behavior as a
member of a criminal street gang.
"AB 2632 does not change the penalties for violating a gang
injunction in any way."
5)Related Legislation : SB 282 (Wright) provided that an
individual subject to an injunction issued against a criminal
street gang member may petition the court for relief from the
injunction under specified conditions. SB 282 was amended
into an unrelated Public Safety bill.
6)Prior Legislation :
a) SB 492 (Maldonado), Chapter 592, Statutes of 2009,
creates enhanced penalties for registered gang members, as
specified, to return within 72 hours after being asked to
leave a school property or other public place at or near
where children normally congregate.
b) AB 104 (Solorio), Chapter 104, Statutes of 2007,
clarifies prosecuting city attorneys seeking civil gang
injunctions and drug abatement orders, as specified, may
have access the Department of Justice's state and local
summary criminal history information.
c) SB 271 (Cedillo), Chapter 34, Statutes of 2007,
authorizes any prosecuting city attorney regardless of the
population size of the city to maintain an action for
monetary damages in cases where gang activity has been
found to constitute a nuisance, as specified.
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d) SB 167 (Hayden), of the 1999-2000 Legislative Session,
would have required the appointment of counsel for indigent
defendants in gang nuisance civil injunction litigation.
SB 167 failed passage on the Senate Floor.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Sheriffs' Association
Orange County Employees Association
Opposition
None
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744